United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Plaintiff Lionell Rutherford was formerly confined at the Federal Medical Center in Lexington, Kentucky. He has filed a Complaint alleging claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Additionally, Rutherford seeks review of the Bureau of Prisons' ("BOP") determination of his security level and resulting prison assignment. [Record Nos. 1, 3, 9, 10] For the reasons outlined below, the Complaint will be dismissed.
Rutherford has a lengthy criminal history. On July 28, 1997, he pleaded guilty to a single count of assaulting and interfering with a flight attendant and was sentenced to four-month term of incarceration. United States v. Rutherford, No. 1:97-CR-80-PAG-1 (N.D. Ohio 1997) ( Rutherford I ). On November 9, 2000, Rutherford pleaded guilty to a single count of passing counterfeit obligations or securities and was sentenced to a ten-month term of incarceration. United States v. Rutherford, No. 1:00-CR-279-LW-1 (N.D. Ohio 2000) ( Rutherford II ). Thereafter, on July 13, 2001, Rutherford pleaded guilty to conspiracy, counterfeiting, and bank fraud, and was sentenced to a 35-month term of incarceration. United States v. Rutherford, No. 1:01-CR-130-LW-1 (N.D. Ohio 2001) ( Rutherford III ).
Following his service of these sentences, on February 27, 2004, Rutherford was released from federal custody to begin a term of supervised release in Rutherford II and Rutherford III. Unfortunately, he was unable to complete supervision without further offenses. Between March and August 2005, Rutherford was indicted by state authorities in Cleveland, Ohio, for drug possession, forging identification cards, receiving stolen property, and theft. And to compound matters, he failed to appear at three separate trials. As a result of these new violations and his repeated failure to comply with the terms of his federal supervised release, on March 3, 2006, the federal court in Ohio sentenced Rutherford to serve one year and one day in prison in each case. ( See Rutherford II, Record No. 78; Rutherford III, Record No. 244.)
Again, however, there were further infractions. On June 1, 2006, Rutherford and eight other individuals were indicted for their participation in a scheme to commit bank fraud. Rutherford pleaded guilty and on March 12, 2007, was sentenced to a 27-month term of imprisonment followed by a five-year term of supervised release. United States v. Rutherford, No. 1:06-CR-272-SL-1 (N.D. Ohio 2006) ( Rutherford IV ). On April 6, 2011, Rutherford was again indicted for his participation in a 2009 scheme to commit bank fraud. He pleaded guilty and on January 12, 2012, was sentenced to a 43-month term of incarceration. United States v. Rutherford, No. 1:11-CR-140-PAG-2 (N.D. Ohio 2006) ( Rutherford V ). This new criminal conduct also violated his supervised release in Rutherford IV. As a result, on March 15, 2014, the court imposed a partially-concurrent 24-month sentence. ( See Rutherford IV, Record No. 224.)
Finally, on August 23, 2012, Rutherford was again indicted for conspiracy to commit bank fraud. He pleaded guilty and on May 22, 2013, was sentenced to a 40-month term of incarceration to run consecutively to his previously-imposed sentences. United States v. Rutherford, No. 1:12-CR-391-PAG-2 (N.D. Ohio 2012) ( Rutherford VI ). The BOP's inmate locator database indicates that Rutherford's current projected release date is November 23, 2018.
Rutherford filed his original Complaint on April 21, 2014. [Record No. 1] He alleges that, under the BOP's system for designating inmates to a prison with an appropriate security level, he has always had 11 or fewer points. As a result, Rutherford claims that he should have been placed in a minimum security facility used for prisoners with 0-11 points. However, he was assigned to FMC-Lexington, a low security facility for prisoners with 12 to 15 points. [ Id., p. 1]
Rutherford states that he talked with his Unit Team in an attempt to be transferred to a minimum security facility, preferably one closer to Cleveland, Ohio, so that he could be near his ailing mother. [ Id., p. 2] However, the BOP's Designation and Sentence Computation Center ("DSCC") in Grand Prairie, Texas, denied his request. Rutherford contends that the denial was improperly based upon an invalid detainer filed by state authorities which was removed one day after he requested transfer. He also alleges that it was the invalid detainer which caused DSCC to apply a "management variable" to him. [ Id. ]
Rutherford indicates that Unit Manager Trimble advised him that he would request that Rutherford be transferred if he dismissed his inmate grievances challenging his placement, paid $100.00 per month towards his court-ordered fine, and maintained employment with the prison. [ Id., p. 3] After he complied, Trimble accordingly applied to have him transferred on March 4, 2014, but DSCC again denied the request. Rutherford contends that there is no lawful basis to apply a management variable to him because there is no valid detainer. Therefore, he asserts that must be transferred to a minimum security facility under BOP policy. [ Id., pp. 3-4]
In his first amended Complaint, Rutherford added a new allegation that Unit Manager Trimble and the Warden of FMC-Lexington apply management variables only to African-American inmates; however, he offers no factual basis for this claim. [Record No. 9, p. 1; Record No. 13, p. 1] Rutherford also contends that Trimble disliked the fact that he was challenging his prison placement and retaliated against him by lying to inflate his security score. [Record Number 10, p. 2] In support of his assertions, Rutherford points to a March 6, 2014 transfer request, in which Trimble set forth positive factors weighing in favor of his placement in a lower security facility. [ Id., pp. 2-3] Rutherford compared that to a June 3, 2014 transfer request, where Trimble identified negative factors weighing in favor of placing Rutherford in a higher security facility. [ Id. ]
On May 12, 2014, after the first transfer request was filed but before the second was initiated, Rutherford was involved in a confrontation with another inmate and received an incident report for assault. [Record No. 9, p. 1; Record No. 10, p. 2] He received disciplinary sanctions as a result, including placement in disciplinary segregation for three months, loss of commissary privileges, disallowance of good time credits. Additionally, Rutherford was recommended for transfer to a higher security institution. [Record No. 15, p. 4]
Prior to the report for assault, a "Male Custody Classification Form" generated by DSCC on April 1, 2014, indicated that Rutherford's total security score was 10 calculated from a Base Score of 12, a Custody Score of 18, and a Variance of minus 2. [Record No. 15-1, p. 1] The form showed that zero points were added to Rutherford's Base Score as a result of detainers because none were lodged against him. It also noted that his Custody Score was based upon "average" living skills and program participation, with no disciplinary reports. The form concluded that Rutherford should be considered for a transfer to a minimum security facility based on his total security score of 10. [ Id. ]
However, after Rutherford's May 12, 2014, altercation and resulting disciplinary conviction, on June 3, 2014, DSCC generated a new and revised classification form. [Record No. 15-2, p. 1] In light of the incident report for assault, the form revised his Base Score from 12 to 16. See PS 5100.08, ch. 6, p. 6. Additionally, Rutherford's Custody Score changed from 18 to 12 based upon a reduction in his Unit Team's assessment of both his living skills and program participation from "average" to "poor." DSCC further noted that Rutherford now had one disciplinary conviction for a "high" level infraction, meaning a Code 200 level offense. Id., ch. 6, pp. 9-12. After applying a Variance of plus 2 to Rutherford's Base Score of 16 through application of Table 6-1(M), Rutherford received a total security score of 18. S ee Id., ch. 6, § ...